The Law Society has proposed a single test that could resolve several concerns arising from the government’s higher stamp duty rates for second homes.

In last year’s autumn statement and spending review, the government announced higher rates of stamp duty land tax on the purchase of additional residential properties as part of a ‘five-point’ plan to refocus housing support towards low-cost home ownership for first-time buyers.

The 3% rise will come into force on 1 April.

Responding to HM Treasury’s consultation paper on the change, the Society said many ‘foregoing complexities’ could be ‘satisfied’ in line with the government’s policy objectives ‘by posing a single test at the point of purchase of the additional property’.

The test ‘would simply be whether the property is being purchased as the main residence for one of the joint purchasers’, the Society said.

The Society said married couples and civil partners should not be treated as a ‘single unit’ as the principle of independent taxation ‘dictates that you should look at the individual’s tax position’.

The government’s policy potentially penalises individuals who already have an investment property and want to buy a main residence.

The position of partnerships and other forms of co-ownership becomes complicated where non-UK property is owned in non-UK co-ownership vehicles.

In scenarios where a parent wants to help children buy a main residence, the Society said it was better ‘to test the use to which the property is put rather than the formalities by which the parent invests’.

A proposed main residence replacement relief could cause problems in ‘chain-breaking’ situations, where a purchaser, let down by his buyer, ended up owning two properties and was then subject to an ‘upfront charge’ of an additional 3%.

The Society said 18 months was too short a period between the sale of a previous main residence and purchase of a new main residence.

‘Whilst the housing market in London is pretty buoyant… that is not necessarily true in other areas of the country,’ the Society said.

‘It also does not appear to consider the implications where a main residence is sold, and then a new one is being renovated or rebuilt.

‘Instructing architects, submitting plans to a local authority, dealing with planning appeals, tendering and awarding the construction contract, raising finance, carrying out the construction operations and finally fitting out could easily take more than 18 months.’

The Society suggested a three-year period be adopted, similar to other areas of SDLT such as in respect of clawback of higher threshold interests.

The Society said the government should recognise the ‘nigh insuperable problems’ with any reporting and declaration by UK conveyancing professionals on behalf of foreign purchasers, particularly given their role as ‘tax collectors’.

Problems include having regard to the difficulties faced by conveyancers in determining ‘foreign’ and ‘ownership’ by the purchaser and/or their spouse (treated as a single unit by the consultation proposal) as well as other family relatives and friends, foreign trusts and nominee arrangements, corporate ownership in which the foreign owner may have some interest and letters of wishes in respect of a portfolio of assets.

The Society said it seemed ‘rather irrational’ to distinguish between overseas residential accommodation enjoyed by foreigners and overseas residential accommodation ‘owned’ by foreigners.

It questioned the basis for exempting purchasers who owned at least 15 residential properties.

‘We wonder what analysis has been done as to the impact of this on the market or whether this is (as we largely suspect) a finger in the air (rather like the 18-month period mentioned earlier),’ the Society said.

‘We would respectfully suggest that this is no basis for creating policy. In identifying the fact that 90% of residential property transactions will not pay the higher rate of SDLT, we presume that the impact of a bulk-purchase test has been factored into that statistic.’

An additional 3% charge should not apply to property traders, the Society said, who ‘provide a useful function in providing liquidity in the market and improving the quality of housing stock, especially in relation to properties at the lower end of the market’.

The Society called for ‘pithy’ guidance in ‘plain English’ for lay people to accompany any changes.

‘It is important that the taxpayer understands that they will be responsible for making their own application for reimbursement unless they separately instruct their solicitor/conveyance to act in this regard,’ it added.

The government will confirm its final policy design at the Budget on 16 March.